by Max Brantley
Neo-Nazis in Skokie. The unspeakable Westboro clan. Inevitably, sad sacks such as these are the unattractive pillars on which organic law rests.
Attorney General Dustin McDaniel is ready to whittle down the First Amendment a bit on account of them. He has announced he will intervene in a Supreme Court case on behalf of the Arkansas law that invokes a no-protest zone for a period of time around funerals.
It gives me no pleasure to say to those aggrieved here that there is not yet a constitutional right to be absolutely protected from opinions, even ones as offensive as those of the Westboro gang (to call it a church is to profane the word).
In the case in which McDaniel will intervene, an appeals court noted that a Westboro protest at a Marine's funeral was held in a public area under police supervision and did not disrupt the funeral. The 4th Circuit overturned a jury verdict of damages for the Marine's family over things said on the Westboro group's website and elsewhere.
McDaniel will file a friend of the court brief to defend the state's no-speech zone in the appeal. Protection of select exceptions to free speech rights is a slippery slope, as the far-removed "free speech" zones of the Bush presidency -- and arrests of people wearing innocuous T-shirts -- demonstrated. Here's a full discussion of the history and difficult First Amendment questions that McDaniel skips over in the funeral law case.
Hard as it is to do, people like the Phelpses are best ignored. The patriotic motorcycle group that provides a silent and peaceful shield around the nuts when they turn up at funerals has been a powerful free expression of its own.
MCDANIEL NEWS RELEASE
LITTLE ROCK – Arkansas Attorney General Dustin McDaniel called on the U.S. Supreme Court today to protect the rights of grieving families faced with offensive protests at military funerals.
McDaniel joined other attorneys general in filing an amicus brief with the Court in support of an appeal by the family of a Maryland serviceman killed in Iraq. In the case Snyder v. Phelps, the family of Marine Lance Cpl. Matthew Snyder appealed a lower-court decision that tasteless demonstrations by Fred Phelps Sr.’s Westboro Baptist Church are constitutionally protected.
“The men and women of our military put their lives on the line for all of us daily,” McDaniel said. “Making sure that their families can mourn peacefully and with dignity is the least we can do for those that sacrifice themselves for our country.”
Arkansas is among dozens of states with laws that prohibit pickets at funerals. Under Arkansas law, it is illegal to protest within 150 feet of a funeral from 30 minutes before to 30 minutes after the service. Attorney General McDaniel was a co-sponsor of the law, which the General Assembly approved while he was serving in the House in 2006.
“I am a strong defender of the First Amendment, but courts have long appreciated proper limits,” McDaniel said. “You cannot yell ‘Fire!’ in a crowded theater. Similarly, provoking grieving families with hate speech is not protected by the First Amendment. Proper time and distance limitations like the ones in Maryland and Arkansas reasonably protect both the dignity of our fallen heroes and the First Amendment rights of protestors.”
The amicus brief argues, in part, that the Court should uphold the constitutionality of funeral protest laws in Arkansas and other states. The brief emphasizes the value that states place on the privacy and dignity of funerals and funeral goers.
“I want to personally thank our Attorney General and all others that are standing firm on ensuring that our fallen service members and their families are never disrespected or forgotten,” said retired Col. Mike Ross, former commander of the Arkansas National Guard 39th Infantry Brigade.
“I know our veterans stand proud today knowing that we have an Attorney General that is willing to stand up and ensure these great Americans and their family members are treated with respect and dignity,” Ross added.
The appeal by Lance Cpl. Snyder’s family came after the 4th U.S. Circuit Court of Appeals ruled these hate-filled protests did not violate the rights of mourners at the fallen Marine’s 2006 funeral.
“There’s no question to me that the actions by this radical group violated the privacy rights of Lance Cpl. Snyder’s family,” McDaniel said. “I hope the Court will take the same view.”